The Law Behind the A.P. Phone-Record Scandal

The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security—but, with the rise of WikiLeaks, that discussion died.

The Times’s case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone records—even those held by a third party, such as a phone company—were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified”—meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2–1, all of the judges agreed that government could not act unilaterally, without judicial review. As Judge Sack said in dissent:

For the question… is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.

He added, “Judge Winter’s opinion makes clear that the government’s demonstration of ‘necessity’ and ‘exhaustion’ must, indeed, be made to the courts, not just the Attorney General.”

In the A.P.’s case, though, the latter is exactly what did happen. (Though since Eric Holder, the Attorney General, said Tuesday that he recused himself, that demonstration wasn’t even made to him, but to someone else in the Department of Justice.) The Department of Justice chose to avoid the court system—and its independent check on the Department’s power—by serving its subpoenas directly on the phone companies without telling the A.P. In so doing, it apparently relied on an exception to its own policy of notifying a media company in advance of a subpoena if doing so “would pose a substantial threat to the integrity of the investigation.”

If, as has been reported, the grand jury is investigating the leak of information concerning the C.I.A. foiling in Yemen of an Al-Qaeda plot to bomb an airliner heading to the United States, it is hard to understand how a later request for phone records would pose a threat to the integrity of the investigation. This request for two months of records was ostensibly made after the calls were made. If the government had a suspicion that one of its employees was the leak, it could go to a court itself and seek a wiretap of that employee. (Of course, they would have to make a showing of probable cause, which they were able to skip by going directly to the A.P.’s phone companies.) There would seem to be no reason not to let the media organization know that it wanted phone records of calls already made—after all, what was the rush? Let the courts decide whether the Justice Department really needs those records or not.

Lynn Oberlander is the general counsel of The New Yorker.

Photograph by J. Scott Applewhite/AP.

Lynn Oberlander, formerly the general counsel of The New Yorker, is the general counsel of First Look Media.